Protection Orders (Restraining Orders) in a Colorado Family Law Case
Note: this article uses the term “restraining order” and “protection order ” interchangeably. Both refer to the same legal practice.
When most people hear “restraining order” they think of a court order, which prohibits a person from physically coming into contact with someone else. While this is true, it is only part of what a restraining order can do, due to the many different forms of abuse. Restraining orders (also referred to as protection orders) essentially put restraints on, or makes dictations to, the behavior of an individual. This behavior can relate to the interaction of, and rights over, another person, animal, assets, or property.
Person to Person: The overall goal of an order is to protect someone from abuse, or threat of abuse, from another person. This abuse can manifest as physical, psychological or economic. Subsequently, an order can restrict contact by keeping one party from calling, writing, or going to locations which the other person frequents, such as their home and work. Additionally, to keep someone from abusing their economic power over another person, an order can dictate what a party can and can’t do with their property, finances and/or assets.
Children and Pets: When children are involved, an order can keep a person from contacting the other party’s children. Additionally, orders can award temporary custody of children or alter parenting time. Pets, as well as children, can be victims of domestic violence and Colorado has made provisions for the inclusion of animals in protection orders. Whether a domestic pet or livestock, an order can restrain a party from committing further acts of abuse and even award temporary custody of said animal to one party.
Limiting behavior: In addition to defining how two parties can interact with one another, an order can restrict someone from consuming alcohol and drugs or limit their ability to handle firearms.
Because of this multi-functionality, restraining/protection orders can be used during several types of proceedings, from physical abuse and harassment, to divorce, alimony, child custody and property division cases. This also makes it possible for multiple restraining orders to be made against someone. Especially when both civil and criminal courts utilize protection orders.
There are several types of restraining orders:
- Domestic Violence Restraining Order : This type of order is used for those considered to be in a domestic relationship such as, married and divorced couples, couples who have children together, couples who dated and domestic partners.
- Civil Harassment Orders: When the relationship between the two parties is not considered to be domestic (i.e. neighbor, roommate, coworker, friend and distant familial relations), then this type of order can be utilized.
- Stay Away/Court Protection Orders: This type of order is initiated by a judge during a criminal trial and spans the length of the trial. It is usually reciprocal in nature (mean neither party can contact the other) but it also can be one-sided. Criminal orders take precedence over civil orders.
- Emergency Protective Order: In cases of imminent danger (such as domestic abuse), local law enforcement can request this order. It is effective immediately and usually last less than a week.
- Juvenile Restraining Order: Similar to civil harassment orders, yet this order applies when either the abuser or victim, or both, are under the age of 18.
- Workplace Violence Restraining Order: An employer may seek to instate this order type between two of its employees. Note: the employer must file, not the employee.
- Dependent Adult Abuse Restraining Order: This order is available for a dependent adult who is being abused.
- Any court in any district in Colorado has the legal authority to issue a restraining order against any adult or juvenile who is 10 years or older.
- The location for the order may be the location in which the threats of violence took place, or in the county in which one works or resides.
- A person can have multiple protective orders made against them.
- Either a court (criminal) or individual (civil) can initiate an order.
- Orders can be temporary or permanent.
- The protected party can seek modification or termination of a protective order at any time.
- The restricted party can request to modify or terminate an order only after 4 years the order was originally entered.
Where Should You File – Criminal or Civil Court?
As already discussed, a protection order is meant to prevent an immediate threat to a person’s physical and/or psychological wellbeing. This could be to protect someone from domestic abuse, stalking or the emotional abuse of an at-risk adult. There are two ways for a protection order to be initiated – either by the victim of abuse or by a third party. This is the main difference between the criminal and civil court’s use of a protection order.
Civil Court is when a person files for a restraining order against another person. If the incident takes place in Denver, for example, then you will generally file a restraining order in Denver County District Court.
Criminal court is when a district attorney seeks an order on behalf of the victim. Only law enforcement, a district attorney or a judge can issue a protection order in a criminal court. Civil court cases are not criminal in nature but are rather seen as a domestic/civil dispute. Therefore, the evidence required in a civil case has a lower burden of proof than required by criminal proceedings.
If you already have a criminal case pending, then discuss your options with your legal representation, they can file for a criminal protective order for you. If you want to file on your own and do not have an open case, then you will need to file through a civil court.
Filing with a Civil Court
If you are seeking relief from physical, mental or emotional abuse from a family member or non-related individual, then you will need to file for a protection order with the district court. To begin, you will be filing for a temporary order, while you wait for a court hearing.
A temporary order seeks immediate relief from abuse or threat of abuse and it usually goes into effect the same day it was filed. It lasts for 14 days until the filer meets with the court, who decides whether or not to make the order permanent. During the 14 days in which the temporary order is active, the filer must serve the order to the person being restrained (in this case called the defendant). Serving the defendant has a twofold purpose: it alerts them of the new regulations they must abide by, as well as their duty to appear in court for the permanent hearing. Please be aware that the filer cannot serve the defendant himself or herself. Instead the filer can have either the local police/sheriff’s department or a process server carry out the service for a fee. Once the service has been successfully carried out, the filer must submit proof to the court. This usually consists of an Affidavit of Service accompanied by the sworn testimony of the person who carried out the service.
If the filer is unsuccessful in serving the defendant, then they must appear at the permanent hearing to ask for an extension.
At a permanent hearing the filer must show evidence of “imminent danger” to their physical and/or emotional well-being if the protection order isn’t made permanent. A filer may present evidence such as personal and/or witness testimony, photographs, emails, phone records or any other documents that show abuse or threat of abuse. If the defendant does not attend the permanent hearing a judge may award the permanent order after reviewing the evidence. If the new order is awarded, then the filer will need to re-serve the defendant with the new order. Unless otherwise stipulated by the court, a permanent order has no expiration date and can last forever.
Thing to keep in mind if your filing:
Timeliness: A common issue which many family lawyers face, relates to timeliness of requesting the order and the related event. Commonly, the party in need of the order delays pursuing it, seeing it as a last-ditch effort. This can make it difficult for a lawyer to prove there exists “imminent danger” to a person’s life or health. While courts cannot deny protection due to a time delay, they are required to consider when the most recent incident of abuse occurred and time delays can affect a court’s decision in determining if a sufficient cause exists when issuing orders. Our attorneys at R&H recommend that you seek legal help as soon as possible after the incident.
Evidence Standards: Be aware that there are evidentiary standards that dictate what you can, and cannot offer as evidence. Submitting evidence that doesn’t abide by these standards may result in your case being dismissed and a subsequent loss of credibility on the part of the filer.
Violating a Protection Order – Do’s and Don’ts
DO – Call the police: If the defendant has violated a protection order, then it is the filer’s responsibility to call the police as soon as possible. Normally this results in the arrest of the defendant. If the police do not find probable cause for an arrest, meaning there is not enough evidence that a violation occurred, then the filer should ask for a copy of the incident report to use as future evidence. Unlike the violation of a civil order where the violator (if arrested) usually gets out on bail, violating a criminal order could result in being charged with contempt of court, felony and/or misdemeanor. Additionally, the violator could spend a lengthy time in jail and face significant fines.
DON’T – Not heed an order just because you move: Moving to a new state does not mean that the order won’t follow you – it will. An order, once awarded, is entered into a nation-wide data base called CLETS, which is accessible to any and all law enforcement.
DON’T – Get in touch, even if the filer says its ok: It does not matter if the filer has had a change of heart and wants to get in contact with you. A protection order is put in place by a court, and only a court can remove or change it. If the filer wants to change an order, then it must go through court first. If you violate an order, even at the request of the filer, then you are liable to further prosecution.
DO – Know the Penalties for Violating a Protection Order: For those who violate a civil order, under Colorado Law, they face getting a Class 2 Misdemeanor on their record, 3 months to 1 year in jail and fines of up to $1000. Violating a criminal order results in harsher punishment of greater jail time and fines (up to 18 months in jail and a $5000 fine).
DO – Find an Attorney: Whether you have an order against you, or you have filed for a restraining order, it is important to seek advice from a legal professional. Orders can be difficult to understand, especially when they are full of legal jargon. Attorneys at R&H can help make sure you know your rights.
Fighting a Protection Order
Sometimes a protection order is based on either extremely exaggerated or even false allegations. This may be because an ex-spouse is angry and seeking vengeance, or they hope to gain power over a shared home by forcibility removing the other party, or hoping to take control over custody by barring a party from seeing their children. Sadly, these scenarios do exist. For those who find themselves being wrongfully accused, there are options.
First and foremost – comply with an order and go to court: If you’ve been served with an order, it is of the upmost importance that you comply with the order and appear in court for the initial hearing. This is your best chance of fighting a protective order. While the filer must give the court proof, in the absence of the defendant, a court may still award the order.
Keep a calm, level head: When being served and when in the court room, you must remain calm and in control of your emotions.It will hurt your credibility if you act out in court – so no yelling, gesturing or getting angry.
If an order is already awarded – seek to modify: While legally, a permanent order has no expiration date and can last forever, Colorado law has made provisions for the restrained person to modify or have a restraining order dismissed. This requires that 4 years pass without further criminal violations, such as convictions of domestic violence or violations of the original order.
Factors such as the victim asking for modification, the accused’s criminal history and whether the accused pleaded guilty will be considered by the judge. If 4 years have passed after the original order, no violations of the current order or further criminal charges made, then you have compelling case to seek modification.
Seek legal help: Usually a judge is more concerned for a party’s safety over the inconveniences it may give the accused. Therefore, it can be extremely difficult for the defendant to persuade the court, especially when not only is evidence of physical abuse grounds for a court to issue a protective order, but evidence of threat of abuse, or even fear for one’s safety are warrant able reasons. If you choose to represent yourself then the things you have said in court may be used against you during trail and sentencing. Due to those factors, we advise that you always seek the guidance of an attorney.
Protection Orders at R&H
At R&H we’ve helped clients on either side of the protection order spectrum. We are experienced at individual case assessment and can help you acquire the right evidence and can skillfully argue on your behalf.
We can help you fight a protection order
In instances where a person is unjustly seeking retribution against their partner through a protection order, we can help. At R&H, we have helped clients deal with situations like this. Whether by working with the opposing party and coming to a settlement or by contacting expert witnesses to debunk unfounded claims, we can help you achieve the best outcome for your case.
We can help you get an order instated:
“Economic abuse” is the idea that abuse extends to one spouse asserting control over finances, property and other assets, which keeps the dependent spouse too afraid to, or financially incapable of, escaping the situation. Examples of economic abuse would include your significant other stealing money from you or your family, putting you on an allowance or forcing you to work for a family business without being properly compensated.
At R&H we have helped a variety of people in a variety of circumstances. We know that it can be especially scary when a person intimidates and seeks control over you. You shouldn’t have to go through this on your own. Call us to schedule a free consolation and we can help you apply for immediate relief and guide you through the court process.